Weapons Drawn in War Over Next High Court Justice

By Allison Stevens

WeNews correspondent

Tuesday, June 28, 2005

As the Supreme Court moves into its summer recess, speculation that at least one member may retire has got observers betting on about a dozen possible candidates for the bench, many of whom have indicated they oppose reproductive and women's rights.

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As the Supreme Court moves into its summer recess, speculation that at least one member may retire has got observers betting on about a dozen possible candidates for the bench, many of whom have indicated they oppose reproductive and women's rights.

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Allison Stevens

WASHINGTON (WOMENSENEWS)--As anticipation builds around the possibility that at least one member of the Supreme Court will resign now that the court has recessed for the summer, predicting the next nominee to the high court has become the nation's hottest parlor game.

Political observers are focusing their attention on a pool of about a dozen candidates, many of whom have indicated through their voting records or public statements that they oppose reproductive rights, said Elliot Mincberg, legal director of People for the American Way Foundation, a liberal advocacy organization in Washington, D.C.

Some potential nominees have also expressed opposition to a range of other women's rights issues, including laws designed give employees leave to care for themselves or family members and to protect women from domestic violence at home and from sexual harassment in the workplace, Mincberg said.

Access to contraception is also at stake, said Karen Pearl, interim president of the Planned Parenthood Federation of America. Indeed, if the court becomes more conservative, some fear it will reverse a decision made four decades ago that found a right to privacy in the Constitution, a ruling that overturned laws prohibiting people from using contraception and laid the groundwork for the legalization of abortion.

"The list of potential Supreme Court nominees reveals a group that is hostile, not only to women's reproductive rights, but to a variety of civil and constitutional rights," NARAL Pro-Choice America, the Washington, D.C., leading lobbyist for abortion rights, said in a recently published analysis.

Center of Speculation

Chief Justice William Rehnquist, 80, became the center of the retirement speculation last fall when he was diagnosed with thyroid cancer.

He did not reveal his intentions by press time on Monday, the final day of the court's session. Some expect him to announce his retirement in the near future, while others predict that he will not make any decision until he completes his medical treatment at the end of September.

Two other justices--John Paul Stevens, 85, who votes with the court's four-member liberal wing, and Sandra Day O'Connor, 75, a centrist swing vote on the issue of abortion--are also rumored to be mulling retirement. If either or both step down, Bush would be under considerable pressure to replace them with anti-choice conservatives--potentially tipping the court's balance against abortion rights.

Socially conservative groups, meanwhile, are gearing up million dollar campaigns to defend any of the likely nominees from attacks.

"We support the president's nominees, period," said Sean Rushton, executive director of the Committee for Justice, one of several conservative groups preparing a nationwide campaign to rebut challenges to any of the president's nominees.

Top of the list

Reportedly at the top of this list of possible Supreme Court nominees are appellate court judges J. Michael Luttig and John Roberts--two men in their early 50s whose relative youth could allow them to serve for three decades.

Both have expressed strong anti-choice views, according to NARAL. Luttig, who serves on the 4th Circuit Court of Appeals in Richmond, Va., has written two anti-choice decisions, including one that upheld a Virginia ban on a procedure opponents call "partial birth" abortion, which, because it lacks a clear clinical definition, could outlaw all abortions after the 12th week.

The Supreme Court struck down a similar law in 2000 because it did not include an exception for the health of the mother, and several other appeals courts have found these types of laws unconstitutional, in part because they have no exceptions for the health of the pregnant woman. Luttig also argued that Congress overstepped its authority when it passed a law allowing victims of domestic and sexual abuse the right to sue their offenders in federal court. The Supreme Court narrowly affirmed the decision in 2000, invalidating a key part of the 1994 Violence Against Women Act.

Less is known of Roberts, a Harvard Law graduate who clerked for Rehnquist but who has served only two years on the D. C. Court of Appeals, the second most prestigious court in the nation. Before his appointment, when he was serving as deputy solicitor general under former President George H. W. Bush, he asked the Supreme Court to overturn Roe v. Wade, the 1973 landmark decision that legalized abortion, according to NARAL.

Attorney General Alberto Gonzales has also been mentioned as a White House favorite, in part because he would be the first Hispanic named to the Supreme Court and also because he won approval from the Senate with a filibuster-proof 60 vote majority.

The possibility angers conservative and liberal activists alike. Columnist Robert Novak summed up conservatives' fear in a June 27 column arguing that Gonzales cannot be trusted to carry the water for the anti-abortion rights movement. Novak noted that while Gonzales served on the Texas Supreme Court, he ruled against parental notification and has maintained that Roe v. Wade was inviolable.

Reproductive rights activists, meanwhile, are also wary of him, noting that he earned a mixed record at best in parental consent cases in Texas. In Washington, they add, he played a pivotal role as former counsel to the president in selecting and promoting many conservative nominees to the lower courts, 10 of whom prompted Democrats to prevent a vote by filibustering, or prolonging debate.

Women's and civil rights groups also object to his role in the prison abuse scandal.

"When you create a society that would tolerate that kind of dehumanizing of one group, you have a society that tolerates dehumanizing other groups," said Terry O'Neill, vice president of membership at the National Organization for Women. "It's of apiece with setting out categories of people who can be discriminated against."

Bush has not tipped his hand about filling the potential vacancy, and the White House did not return calls for comment.

Activists are circulating prospective and ever-changing lists of roughly 10 other officials--including three women--mentioned as possible Supreme Court candidates.

They are Samuel Alito, a judge on the Third Court of Appeals in Philadelphia; Emilio Garza, Edith Jones and Edith Brown Clement, who sit on the Fifth Circuit Court of Appeals in New Orleans; and Michael McConnell, who sits on the Tenth Circuit Court of Appeals in Denver. J. Harvie Wilkinson III of the Fourth Circuit, Janice Rogers Brown of the D.C. Circuit, William Pryor of the 11th Circuit in Atlanta, U.S. Solicitor Theodore Olson and Sen. John Cornyn of Texas have also been mentioned, but are not considered frontrunners.

"They all have very troubling records on the rights of women and minorities," said Mincberg of People for the American Way.

Wilkinson, for example, voted against abortion rights in a divided decision upholding a Virginia parental notification law, according to NARAL. McConnell, before his appointment to the Tenth Circuit, endorsed a constitutional amendment that would ban abortion nationwide, the group noted.

And Alito--nicknamed "Scalito" for views similar to one of the most conservative Supreme Court Justices, Antonin Scalia--has found that time delays, higher costs and reduced availability associated with abortion do not qualify as undue burdens on women's reproductive rights.

Political observer Bill Frenzel, a former Republican congressman from Minnesota and a current scholar at the Brookings Institution, a think tank in Washington, D.C., doubts that Bush will work to make the next nomination popular with the minority party.

"Based on the way this administration has handled itself, I would expect the administration to appoint a pro-life justice regardless of who steps down," he said. "The Democrats in the Senate are saying, 'You must counsel with us before you do anything.' It doesn't look like he's in a hurry to counsel."